Friday, November 21, 2008

Patently-O has a post on citation to law review articles by the CAFC. The low abundance of cites has been discussed in the past. [For example, Nard's TOWARD A CAUTIOUS APPROACH TO OBEISANCE: THE ROLE OF SCHOLARSHIP IN FEDERAL CIRCUIT PATENT LAW JURISPRUDENCE ]

Part of the text might be viewed in light of how OMB handled its analysis of the now-enjoined continuation rules:

Similarly, Professor Robert Gordon of Stanford University points out how the "law and economics" movement is very practical. [FN122] I must admit my jaw dropped when I came to the part of Judge Edwards' article that seems to argue that even law and economics is not "practical." . . . President Reagan's executive orders required all the agencies to do "cost- benefit" analyses;

If the "cost benefit analysis" is a pretextual formality, then there is no "practicality."

Furthermore, engaged scholarship already abounds. For example, Professor Mark Lemley has published several articles that are highly theoretical, but address issues of critical interest to litigants. Though his articles are published in such journals as the Yale Law Review,18 which many consider the most theoretical of the law journals, courts have nonetheless repeatedly relied upon them in deciding real-world disputes.19

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I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.